Shakti Livestock Feeds P Ltd. ... vs Kwality Agro Vet Industries ...
2016 Latest Caselaw 512 Bom

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              IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                           
                            CIVIL APPELLATE JURISDICTION




                                                   
                            WRIT PETITION NO.1610 OF 2016


    KWALITY AGRO-VET INDUSTRIES                              ..Petitioners




                                                  
           Vs.
    The State of Maharashtra                                 ..Respondent

                                   WITH
                        CIVIL APPLICATION NO.647 OF 2016




                                             
                                    IN
                        WRIT PETITION NO.1610 OF 2016
                                      
    Kamdhenu Feeds                                           ..Applicant
                                     
    In the matter between

    KWALITY AGRO-VET INDUSTRIES                              ..Petitioners
         Vs.
         

    The State of Maharashtra                                 ..Respondent
      



                                   WITH
                       CIVIL APPLICATION NO.648 OF 2016
                                 IN
                       WRIT PETITION NO.1610 OF 2016





    Shakti Livestock Feeds Pvt Ltd                           ..Applicant

    In the matter between





    KWALITY AGRO-VET INDUSTRIES                              ..Petitioners
         Vs.
    The State of Maharashtra                                 ..Respondent


    Mr. Atul Damle, Senior Counsel a/w Mr. Sachin Gite, for the
    Petitioners.


    Aswale                                  1/10




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    Mr. P. G. Sawant, AGP, for the Respondent State.




                                                                                     
    Mr. Nirman Sharma a/w Ms. Uma Sharma and Dharam Sharma
    i/b Dharam and Co, for the Applicant in both Civil Applications




                                                             
                                            CORAM :- V. M. KANADE, J. &
                                                     B. P. COLABAWALLA, J.

DATE :- MARCH 10, 2016.

JUDGMENT :- [ Per B. P. Colabawalla, J. ]

1. By this Petition under Articles 226 and 227 of the

Constitution of India the Petitioner has challenged the rejection of

their bid by the Respondent's Technical Scrutiny Committee

Report dated 1st February, 2016. The tender / bid of the Petitioner

was for supply of Mineral Mixture Type II (IS 1664:2002) without

salt to the Veterinary Institute.

2. The brief facts giving rise to the present controversy

are that the Respondent had invited tenders in the prescribed

format for supply of Mineral Mixture Type II (IS 1664:2002)

without salt to the Veterinary Institute. This tender was published

on 30th December, 2015 and a detailed e-tender notice was made

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available on the e-tender portal of the Department of Animal

Husbandry. The tender / bid submissions were to take place

between 30th December, 2015 and 22nd January, 2016. It is the

case of the Petitioner that as per the tender notice, they submitted

their on-line tender on 21st January, 2016 along with all the

technical documents including a valid certification of Marks

Licence issued by the Bureau of Indian Standard (BIS) for Mineral

Mixture Type II (IS 1664:2002).

3. On 23rd January, 2016 the Petitioners' bid was opened.

According to the Petitioners, it had complied with all the terms

and conditions as mentioned in the tender documents. It is in

these circumstances that the Petitioners were surprised that on

3rd February, 2016 the Petitioner found out that their tender was

rejected as per the Technical Scrutiny Committee Report dated 1st

February, 2016. It is the case of the Petitioner that after making

further enquiries, it came to know that its tender / bid was

rejected on account of a spelling error in the name of the

Petitioner in the Marks Licence certificate issued by the Bureau of

Indian Standard as well as the certificate granted by the

Directorate of Industries, Government of Tamil Nadu. It is in these

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circumstances that the Petitioner has approached this Court in its

writ jurisdiction questioning the decision of the Respondent in

rejecting their bid.

4. In this factual background, Mr. Damle, learned Senior

Counsel appearing on behalf of the Petitioner submitted that the

facts of the case would clearly reveal that there was merely a

typographical error in the name of the Petitioner in the aforesaid

certificates and in such circumstances the tender / bid of the

Petitioner ought not to have been rejected on this specious ground.

Mr. Damle submitted that the correct spelling of the name of the

Petitioner is "Kwality Agro-Vet Industries" whereas the name

appearing in the certificate granted by the Bureau of Indian

Standard and also by the Directorate of Industries, Tamil Nadu

was "Kwality Agro-Wet Industries". Mr. Damle would submit that

this was a totally frivolous ground on which the tender / bid of the

Petitioner was rejected, and therefore, required interference by us

in our extra ordinary writ jurisdiction under Articles 226 and 227

of the Constitution of India.

5. On the other hand, Mr. Sawant, learned AGP,

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appearing on behalf of the Respondent, submitted that it is an

admitted position that the certificates submitted by the Petitioner

were in the wrong name. He submitted that the certificate of

Marks Licence CM/L No.6507165 issued by the Bureau of Indian

Standard was in the name of "Kwality Agro-Wet Industries" and

not in the name of the tenderer "Kwality Agro-Vet Industries". He

stated that the certificate of Marks Licence CM/L No.6122448 was

also issued by the Bureau of Indian Standard to "Kwality Agro-Vet

Industries" which expired in the year 2004. He, therefore,

submitted that this was not a case of a simple typographical

mistake as sought to be made out by the Petitioners. In any event,

he submitted that the Respondent Authorities cannot be faulted

for rejecting the tender of the Petitioner if defective certificates

had been submitted. In this regard, he also relied upon the

decision of the Supreme Court in the case of Glodyne Technoserve

Limited v/s State of Madhya Pradesh and Others1 and more

particularly paragraphs 8, 46 and 47 thereof.

6. Mr. Sawant additionally submitted that in any event

the samples submitted by the Petitioner were not as per the

Bureau of Indian Standard and it was on this ground also that the

1 (2011) 5 SCC 103

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tender / bid of the Petitioner was rejected and his commercial bid

was not opened. He submitted that this fact is undisputed by the

Petitioner. For all the aforesaid reasons, Mr. Sawant sought to

justify the rejection of the Petitioner's bid and submitted that the

Writ Petition be dismissed with costs.

7. With the help of the learned counsel, we have carefully

perused the papers and proceedings of the present Writ Petition

along with the Annexures thereto. On a careful consideration of

the material on record we find considerable force in the argument

of the learned AGP. It is not in dispute that the certificates that

were submitted by the Petitioner were in the wrong name. We are

unable to accept the submissions of Mr. Damle that this mistake

ought to be overlooked in view of the fact that it is merely a

typographical mistake. It is pertinent to note that the Marks

Licence certificate submitted by the Petitioner was allegedly in the

wrong name as far back as from 5th May, 2010. The Petitioner did

absolutely nothing to have name corrected. Looking to the

conduct of the Petitioner in this case we cannot find any fault with

the actions of the Respondent in rejecting the Petitioner's bid on

the ground that the Marks Licence certificate submitted by the

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Petitioner was not in its name. In this regard, it would apposite to

refer to the judgment of the Supreme Court in the case of Glodyne

Technoserve Limited (supra).

The issue before the Supreme

Court (as set out in paragraph 8 thereof) was whether the

Appellant therein was disqualified from consideration in view of

the fact that the Appellant, due to inadvertence or otherwise, had

filed a copy of the ISO 9001:2000 certificate of the previous year,

instead of the current year. This was despite the fact that it had a

valid ISO 9001:2000 certificate at the time of making the bid.

After elaborately setting out the facts and arguments of the

parties, the Supreme Court in paragraphs 46 and 47 held thus:-

"46. The above provision obliges a tenderer to produce along

with the bid document a copy of the quality certificate which is valid and active on the date of submission of the bid and it does

not enable a bidder to withhold the copy of such quality certificate. Where the quality certificate will be expiring shortly and is due for renewal, the bidder is also obliged to produce the renewed certificate at the time of signing of the contract. The

appellant claimed to have a valid and active ISO 9001:2000 certificate at the time of submission of the bid, but did not produce a copy of the said certificate along with the bid document.

47. The submissions made on behalf of the appellant proceeds on the basis that it was entitled, almost as a matter of right, not to submit the documents required to be submitted along with the bid documents on the supposition that, even if such documents were valid and active, they could be submitted at the time of signing of the memorandum of understanding. The appellant had a valid and active ISO 9001:2000 certification which it did not submit along with the bid documents, may be due to inadvertence, but

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whether such explanation was to be accepted or not lay within the discretionary powers of the authority inviting the bids. The

decision taken to reject the technical bid of the appellant cannot be said to be perverse or arbitrary. We need not refer to the decisions cited by the learned Attorney General or the appellant

in this regard, as the principles enunciated therein are well established."

(emphasis supplied)

8. As can be seen from the aforesaid decision, even after

the wrong certificate was submitted along with the bid documents

due to inadvertence, whether such an explanation was to be

accepted or not lay within the discretionary powers of the

authority inviting the bids. We find that even in the facts of the

present case admittedly the Marks Licence certificate that was

submitted by the Petitioner was in the wrong name. This was

sought to be explained by the Petitioner by contending that this

was merely a typographical error. As held by the Supreme Court,

whether such explanation was to be accepted or not lay within the

discretionary power of the authority inviting the bids. In the facts

of the present case, we do not think that the decision taken to

reject the bid of the Petitioner can be said to be perverse or

arbitrary which would require our interference in writ

jurisdiction. This is more so in the facts of the present case

considering the fact that the Petitioner never took any steps from

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2010 onwards to have the alleged mistake corrected. We,

therefore, are unable to accept the submissions of Mr. Damle in

this regard.

9. Even otherwise, we find that the Respondent in its

affidavit in reply has elaborately set out that the samples

submitted by the Petitioner (a requirement under the tender

conditions) did not comply with the Bureau of Indian Standard. It

is specifically stated in the said affidavit that as per Condition

No.4 of the tender, the Petitioner was required to submit samples

of Mineral Mixture Type-II (IS 1664:2002). The Petitioner

submitted the samples on 20th January, 2016 in packets of 1 kg

and 5 kg respectively. When these samples were examined, it

came to the notice of the Respondent authorities that the samples

had two different compositions. On the composition of the 1 kg

sample, it is mentioned as "YEAST PERCENT BY MASS, MIN : 5".

It is not in dispute that this is not as per the Bureau of Indian

Standard. It is further stated in the affidavit that surprisingly

even though the 1 kg as well as the 5 kg samples submitted by the

Petitioner were having two different compositions, there was only

one test report submitted. It was therefore also on this ground

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that the Petitioner's bid was rejected. Despite the fact that this

affidavit was served on the Petitioner, the Petitioner has chosen

not to controvert these facts stated in the affidavit-in-reply of the

Respondents.

10. Looking to the totality of the facts of the present case,

we do not think that the decision of the Respondent Authorities to

reject the Petitioner's bid is in any event perverse and/or

arbitrary that would require our interference under Article 226

and/or 227 of the Constitution of India. In the facts of the present

case, we do not think that justice lies on the side of the Petitioner

for us to exercise our extra ordinary, equitable and discretionary

writ jurisdiction in favour of the Petitioners and strike down the

decision of the Respondent Authorities rejecting the Petitioner's

bid. In this view of the matter, we find no merit in the Writ

Petition and it is accordingly dismissed. However, in the facts of

the case we leave the parties to bear their own costs. In view of the

fact that the Writ Petition is dismissed, nothing survives in the

above Civil Applications and the same are also disposed off

accordingly.

      (B. P. COLABAWALLA, J.)                    (V. M. KANADE, J.)

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